Opinion
2008-03 K C.
Decided February 10, 2009.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), dated December 5, 2007. The order, insofar as appealed from, denied defendant's motion to strike the notice of trial and dismiss the complaint.
Order, insofar as appealed from, affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and STEINHARDT, JJ.
Plaintiffs commenced this action in the Supreme Court, Kings County, in December 2002, to recover damages for personal injuries. By order dated January 5, 2006, the action was transferred to the Civil Court, Kings County. After plaintiffs' counsel failed to appear for scheduled conferences on April 5, 2006 and July 19, 2006, the case was "marked off" the calendar. In May 2007, within one year after the case was stricken from the calendar ( see Uniform Rules for the New York City Civil Court [ 22 NYCRR] § 208.14 [c]), plaintiffs moved to restore the action to the calendar, asserting that they had not been notified of the court dates and providing details with respect to the merits of their claim. The motion to restore was granted, by order entered July 12, 2007, on condition that "within 20 days hereof, plaintiff [ sic] serves upon defendant and files a new Notice of Trial, together with a copy of this order with Notice of Entry, and obtains a new calendar number . . . and serves a copy of this order on the calendar clerk."
After plaintiffs served a notice of trial on defense counsel on August 7, 2007 and filed said notice of trial with the clerk on August 21, 2007, defendant moved to strike the notice of trial and dismiss the complaint based upon plaintiffs' noncompliance with the July 12, 2007 order. Plaintiffs opposed the motion and cross-moved for sanctions. The court below denied the motion and the cross motion. Defendant appeals from so much of the order as denied its motion to strike the notice of trial and dismiss the complaint.
Contrary to their assertions, plaintiffs did not timely comply with the conditional restoration order. However, plaintiffs showed that they had no intention of abandoning the action ( see Primiano v Ginsberg, 55 AD3d 709) and presented a reasonable excuse for what amounted to a minimal delay. Furthermore, plaintiffs' submissions were sufficient to demonstrate that there was a potentially meritorious claim against defendant. In light of the strong public policy favoring the resolution of cases on the merits ( see Moore v Day, 55 AD3d 803), we find that it was a provident exercise of discretion for the Civil Court to have denied defendant's motion. Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.